Blakey -v- President, Anti Discrimination Board of New South Wales [2000] NSWADT 41

CITATION: Blakey -v- President, Anti Discrimination Board of New South Wales [2000] NSWADT 41 DIVISION: Equal Opportunity Division APPLICANT Stephen John Blakey PARTIES: RESPONDENT President, Anti Discrimination Board of New South Wales FILE NUMBER: 001004 HEARING DATES: 10/04/2000 SUBMISSIONS CLOSED: 04/10/2000 DATE OF DECISION: 04/13/2000

BEFORE: Raphael K - Judicial Member APPLICATION: Review of President's decision to decline to entertain complaint MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: J Lye, solicitor RESPONDENT G De Coursey, solicitor ORDERS: 1. An extension of time to bring an application for review of the respondent's decision be granted.; 2. The respondent's decision be set aside.; 3. The matter be referred back to the respondent for investigation pursuant to s.89 of the Anti-Discrimination Act 1977.

1 The Tribunal has been asked pursuant to s.90(3) of the Anti-Discrimination Act 1977 to review a decision of the President of the Anti-Discrimination Board made on 22 August 1999 that the complaint made by the applicant did not disclose a contravention of the New South Wales Anti-Discrimination Act. The Tribunal is also asked to extend the time for an application for review pursuant to s.57 of the Administrative Decisions Tribunal Act (1998) NSW which the Tribunal is entitled to do where it: "Is of the opinion that the person has provided a reasonable explanation for the delay in making the application." 2 The applicant filed a statement which is found as Exhibit A in these proceedings explaining the course of events from the time he received the letter from the President of the Board after the 25 August 1999 to the time he made the application for review through the Legal Aid Commission on 21 January 2000. The respondent adopted the view that it neither consented to nor opposed the application and having read the statement of the Applicant the Tribunal is of the view that this is an appropriate case in which an extension should be granted.. 3 Mr Blakey is employed by the New South Wales Fire Brigade. He has worked for the Brigade for a period in excess of 15 years and is stationed in the Illawarra fire district. In August 1996 his wife and daughter left their shared home in that district and moved to southern Queensland. In October 1996 the applicant travelled to southern Queensland and despite continuing to be stationed in the Illawarra district he has been primarily resident in southern Queensland since that time residing with his wife and family at various addresses. He was therefore particularly interested in the possibility of a transfer to the Tweed Heads district. The fire brigade adopted certain criteria in order to select the candidates to be transferred and part of that criteria required a candidate to provide, inter alia, evidence of their residence by reference to rate notices or invoices from utilities. Mr Blakey provided such evidence but it was all in the name of his wife. It is his allegation that this evidence was not acceptable to the fire brigade and he slipped down the priority list from third to last. It was as a result of this action that the applicant brought his claim to the Anti-Discrimination Board claiming that the Brigade was discriminatory in requiring evidence from him which could not be provided for reasons connected with his marital status. 4 When the complaint was examined by the Board it made the following determination: "After considering carefully all the relevant information you have provided to the Board I am satisfied that what you have alleged does not disclose a contravention of the New South Wales Anti-Discrimination Act 1977 (the Act). This is because the disadvantage you have suffered is because of the fact that you had previously been separated from your wife with whom you have now reconciled. The Act does not cover a person's past marital status and so cannot cover the situation which you allege." 5 In its reasons for the decision the Board stated: "Under s.4 of the Anti-Discrimination Act 1977 (NSW) marital status is defined as the condition of being: Single; Married; Separated; Divorced; Widowed; or in a de-facto relationship (with a member of the opposite sex). As such, the condition of being married following a period of separation is not included amongst the definitions listed, nor do the marital status provisions extend coverage to include unfair treatment on the basis of a person's past marital status." 6 It had been suggested by Mr Blakey that the reason that the utilities invoices were not in his name but in that of his wife was that they had been put there when they had separated and for various reasons had not changed. 7 At the Tribunal hearing it was conceded by Ms Lye for the applicant that at the relevant time ie. when the call for documentation was made Mr Blakey was not a separated person and that no claim was being made that this part of s.4 applied. The applicant sought a review of the President's decision and the reference of his complaint to the Administrative Decisions Tribunal pursuant to s.94(1)(c) of the Anti-Discrimination Act and s.63(3)(c) of the Administrative Decisions Tribunal Act. The applicant accepted that it was open to the Tribunal to refer the matter back to the Anti-Discrimination Board but indicated that this was not the applicant's preferred choice. The Board sought that the President's decision be upheld but if that did not occur then the Board requested that the matter be referred back to it for a determination in accordance with the Act. Alternatively, the applicant asked that if the Tribunal formed the view that the complaint did raise possible contraventions of the Anti-Discrimination Act but that these could not be substantiated, that the Tribunal set aside the decision of the respondent and make a decision that the applicant's complaint should not be entertained because it was lacking in substance (s.90(1) of the Anti-Discrimination Act 1977). 8 The Tribunal has come to the view that the Board was incorrect in holding that any discrimination that the applicant might have suffered was suffered as a result of his past marital status and that this was not a matter which the Board could consider. The discussion of the applicant's past marital status seemed to the Tribunal to be irrelevant. It merely provides one of the reasons why the accounts were not in this particular applicant's name. However, the fact is that there may have been a number of other reasons all associated with the fact that he was a married person for having the accounts in the name of his wife. The action of the Fire Brigade in not taking the utilities invoices into account because they were in the name of his wife and not in the name of the applicant could be construed as a discriminatory action arising out of the applicant's married status. That status existed at the time the Fire Brigade acted as it did and the Board was not concerned with past status. 9 Persons who are married are one of the number of classes of persons who have an option as to which name to put utility accounts into. If such a person exercises that option and as a result is treated in a way which is less favourable than a person who does not have the option is treated there would appear to be, prima facie, an act of discrimination. It is determining whether this has occurred which is the first matter that must be considered by the Board. Once the Board has made such a decision it is open to it to come to other findings eg. that the act of discrimination which was alleged could not be substantiated or that it was frivolous, vexatious or misconceived or need not be entertained (s.90(1) of the Anti-Discrimination Act). That determination was never made in this case because the President found that the alleged act of discrimination referred to a past status that was not covered. 10 The Tribunal having found that reference to past status was an irrelevance and that it was open to the Board to find that discrimination had occurred on the grounds of the applicant's marital status the Tribunal must decide what is the appropriate remedy. 11 The Anti-Discrimination Act is: "An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons." 12 The Act provides a scheme under which these objects can be fostered. The scheme prohibits discrimination and provides for a Board to handle complaints where it is alleged to exist. It is the duty of the President to investigate complaints (s.89(1)) and an attempt to resolve then by conciliation. The Board has interpreted its responsibilities to investigate and resolve complaints widely. It takes upon itself duties of education and mediation. The Board works as much to prevent future acts of discrimination as it does to seek out and deal with acts that have already taken place. 13 In addition to the Anti-Discrimination there exists the Equal Opportunities Tribunal whose powers have now been subsumed by the Administrative Decisions Tribunal. The Tribunal has coercive powers and can require a party to do what the Board can only request. However, access to the Tribunal is limited. The Tribunal can only be approached after a matter has been considered by the Board. It is the responsibility of the Board in all cases to attempt to resolve the dispute first. 14 Where a case is brought before the Board but not considered by the Board other than on a threshold basis as to whether or not a relevant act of discrimination might have taken place, then it is the view of this Tribunal that the matter should be referred back to the Board when upon review it is decided that the Board was in error and the application was not acted upon. Although the Board has looked hard at the circumstances of this applicant's claim it did not in any way attempt to resolve it nor to seek responses from the Fire Brigade concerning it. These things should happen so that the parties can have an opportunity to conciliate their differences without the trappings of the legal procedures that accompany a Tribunal hearing. If the matter is not then resolved it would be open to the applicant to bring the case to the Tribunal. 15 The Tribunal orders that: (i) An extension of time to bring an application for review of the respondent's decision be granted. (ii) The respondent's decision be set aside. (iii) The matter be referred back to the respondent for investigation pursuant to s.89 of the Anti-Discrimination Act 1977.